Whether Request For Extension Of Pre-Charge Detention Under UAPA Should Meet The 'Threshold Of Impossibility'? Delhi HC To Examine

The Delhi High Court on Friday issued notice on a petition involving a question of law as to whether the request for extension of period of investigation and pre-charge detention under proviso to Section 43D (2)(b) of Unlawful Activities (Prevention) Act should meet the threshold of "impossibility".

The proviso sates:

"if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days."

A Bench of Justice Siddharth Mridul and Justice Anup J Bhambhani sought response of the State in the petition moved by one Zeeshan Qamar, challenging the Trial Court's order which had granted an extension under Section 43D (2) (b) of the UAPA in his case.

Advocate Shahrukh Alam appearing for Qamar argued that the threshold for extension of investigation under UAPA is graver than that contained under Section 167(2) CrPC. It was submitted that under UAPA, the investigating officer must show that it was "impossible" to complete the investigation within the stipulated period of 90 days, as opposed to 'adequate grounds' mentioned in CrPC.

"When it comes to stringent provisions, we have to ensure that Article 21 is not ignored. But prima facie, this is in accordance with law. Laying down the impossibility test would result in another trial...whether it was actually impossible to complete the investigation in 90 days," the Bench orally remarked.

Background

Qamar was arrested from his residence in UP in September this year after an FIR was registered on a complaint in relation to some input received regarding an alleged terror module.

Thereafter, Qamar was remanded to 14 days by the CMM, Patiala House Court and Sections 18 & 20 of the UAPA; Section 4&5 of Explosives Act and Section 25 of Arms Act were added against him in the remand order.

An application seeking extension of remand was then filed before the Special Judge on 29.09.2021 which was opposed by the Appellant on ground that the first remand by the CMM was without jurisdiction. However, the arguments were rejected, and his remand was extended.

On December 8, another application seeking extension of period of investigation was filed wherein the Special Judge vide impugned order dated December 9, 2021 granted an extension till February 11, 2021.

In this backdrop, the plea states that the proviso to sec. 43D(2)(b) of the UAPA inserts an additional and higher threshold relating to impossibility of completing the investigation within 90 days, which is distinct from the threshold of adequate grounds as mentioned in the sec. 167(2) Cr.P.C.

"That the higher threshold of "impossibility" has been inserted for good reasons since the UAPA being a special act already grants an extraordinarily long period of 90 days for pre-charge detention of the accused, which is an exception in criminal justice jurisprudence. Thus any further extension of the period of detention without charge has to be assessed on a higher threshold," the plea adds.

It has further been averred that the impossibility of examination of data and other factors must be calculated from the date of arrest and recovery of material and not from the date on which the application for extension of period for pre-charge detention is filed.

"That the Report of Public Prosecutor in the present case does not comment on the impossibility of completion of examination from the date of arrest of the appellant. The impugned order of the Learned Special Judge dated 09.12.21 also does not assess the report on the threshold of impossibility," the plea adds.

Accordingly, the plea seeks quashing of the impugned order passed by the Special Judge and also that the appellant be released on bail as per sec. 167 (2) of the Code of Criminal Procedure, 1973, read with sec. 43D(2) of the UAPA.

The plea has been filed through Advocates Shahrukh Alam, Rashmi Singh and Ahmad Ibrahim.

The matter will now be heard on February 10.

Case Title: Zeeshan Qamar v. The State of NCT of Delhi